Marriage is a sacred union of two souls, it is an institution by virtue of which a sacrosanct bond between two individuals is created. But where does marital rape fit into the concept of sanctity of marriage? Where the dignity of a women is obliterated and viciously violated, there can be nothing sacred. Marital rape, also referred to as spousal rape, refers to the act of sexual intercourse with one’s spouse without the consent of the spouse. Marital rape is a form of domestic violence and sexual abuse.
Section 375 of the Indian Penal Code, 1860 which defines the offence of rape, comprises an exception clause whereby it states that sexual intercourse between a man and his own wife, given that the wife is not under fifteen years of age, is not rape. Whether the wife consented to the sexual intercourse or not is nowhere mentioned in Section 375 and is impertinent, as far as the IPC is concerned. Exception 2 of Section 375 of the IPC discriminates between married and unmarried women, denying married women equal protection from rape and sexual harassment, which is in violation with right to equality enshrined in Article 14 of the Constitution of India. It divides women into two classes based on their marital status and immunizes sexual violence committed by males against their spouses which in turn leads to married women being victimised on no other grounds other than their marital status while protecting unmarried women from the same offences. There is an absence of reasonable justification or intelligible differentia with the exception clause which unreasonably discriminates against married women and renders them vulnerable to sexual violence from their spouses. Thus, we infer that the Indian legal system is devoid of a law or code that deems marital rape a crime.
In the case of Suchita v. Chandigarh Administration (2009), the Supreme Court observed that the right to choose in relation to sexual activity with that of personal liberty, bodily integrity, dignity, and privacy, is protected by Article 21 of the Indian Constitution. In the case of Suchita v. Chandigarh Administration (2009), the Supreme Court observed that the right to choose in relation to sexual activity with that of personal liberty, bodily integrity, dignity, and privacy, is protected by Article 21 of the Indian Constitution. In Govind v. State of M.P. (1975) and Kharak Singh v. State of U.P (1962), the Supreme Court held that forced sexual cohabitation is a breach of fundamental rights as the right to abstain from sexual intercourse is a recognised principle of Indian Constitutional Jurisprudence. It is a food for thought that despite the constitutional rights that guarantee equality, dignity, life and personal liberty enshrined in Articles 14 and 21 of the Indian Constitution being available to all individuals alike, how the Indian legal system has failed to recognize the vile and depraved act of marital rape that grossly violates these inalienable rights of women, as a crime.
When a man engages in sexual intercourse with a woman, against her will, without her consent, the man is said to have committed the offence of rape. However, the equation of this definition changes when dealing with a spousal relationship. Here, the consent of the wife, whether the sexual act was committed against her will, is inconsequential. In India, since marriage is considered to be sacrosanct, the legal forces refuse to interfere in the “personal affairs” between a husband and a wife. It is not a question of law, but interpersonal matters that to be mutually resolved on their own.
Consent is the key word here. It is of crucial importance to obtain consent of one’s partner every time one engages in sexual relations. The generic meaning of consent is when a person agrees to the offer or desires of another person. Sexual consent refers to consent to engage in sexual activity, in absence of which the said sexual activity is considered to be rape.
There are two basic theories in legal theory for laws against rape and other types of sexual violence:
The coercion-based model which requires that the sexual act be performed through coercion, violence, physical force, or intimidation for the act to be considered as rape
The consent-based model requires that there must be a sexual act that the other person did not consent to.
The Indian legal system follows the consent-based model, but marital rape is legal in India which is an astonishing paradox. Section 114A of the Indian Evidence Act, 1972, in a rape trial, if the woman alleged to have been raped, testifies that there was no consent expressed from her end, it is presumed by the Court that consent was absent. However, the predicament is that this rule does not apply to circumstances wherein the rape victim is the wife of the sexual assailant. A marriage certificate does not imply that the wife has given her consent to having sexual relations 24 hours of the day and 365 days of the year. In a healthy relationship, consent is supposed to be obtained every time two people engage in sexual intercourse. Apart from it being absolutely necessary for both, the husband and wife, consenting to sexual intercourse; it also signifies that the couple respect and value each other person’s wishes and boundaries which ultimately paves way for a healthy marriage and works towards sustaining the holiness of marriage.
In RIT Foundation v. Union of India (2017), the Delhi High Court heard a petition filed by the RIT Foundation and the All India Democratic Women's Association (AIDWA) challenging the constitutionality of Exception 2 to Section 375 of the IPC, which exempts the husband from a charge of rape and thereby legalises marital rape in India. The petitioners contented that Exception 2 to Section 375 of the IPC is unconstitutional and demanded that the court strike it down without intervention by the Parliament. The Exception to Section 375 was framed in line with the Victorian patriarchies of the 1860s, which did not deem men and women as equals. But with the commencement of the Constitution in 1950, all citizens of India, regardless of class, religion, race, gender, or place of birth were guaranteed key fundamental rights which are inviolable and inalienable in nature. Furthermore, Article 13(1) of the Indian Constitution declared all laws in force prior to 1950 that were found to be inconsistent with these inalienable fundamental rights, to be void. Moreover, marital rape being legal is an encroachment on women’ right to equality, life, liberty and dignity and a multitude of other basic human rights. In 2018, in a momentous judgement while hearing pleas to criminalize spousal rape, the Delhi High Court stated that marriage does not imply a natural lease of life-long consent to have sex with your partner or to demand it from them. The court held that in a spousal relationship, both men and women have the right to say "no" to sexual intercourse, emphasising that being married does not imply that the woman will always consent to sex.
Despite undergoing developments and witnessing progress in various spheres and domains, the Indian society still remains largely misogynistic and patriarchal. While this can be corroborated with various instances and issues women face per diem and ceaselessly, the instance of marital rape is just another jarring reminder for the entire society to reconsider its stance towards women and pay heed to the cry for help of helpless victims of this “legalized crime”. Due to the rigid patriarchal and societal ideologies on which Indian marriage laws are built upon, basic fundamental rights of women are exploited abundantly of which the statistics of gender-based and minority crimes are a testament. According to National Family Health Survey (NFHS-4) 2015-2016, 31 percent of women who had been married at some point in time, had been subjected to physical, sexual, or emotional violence by their spouse, amongst which physical abuse was the most common form of violence. 83 percent of ever-married women between the ages of 15 and 49 who have endured sexual violence indicated their present husband to be the perpetrator, with only 7% reporting their former spouse. The most common type of alleged sexual violence was the husband's use of physical force and intimidation for sexual intercourse against his wife's will. These startling revelations highlighted the imminent need for a legislation criminalizing spousal rape, however failed to instigate a prompt action towards it. Married women in India are yet to claim their right to abstain from sexual intercourse.
In India, a husband is not convicted or charged for raping his wife. This antiquated custom is discriminatory towards women in India, where the husband has ultimate dominance and legal legitimacy over the rights of the wife. From a social perspective, there is a tendency to normalize marital rape and deem it a part and parcel of marriage. Furthermore, it has been discovered in many situations that the woman herself, due to illiteracy or severe societal traditions, does not give a consideration to the "crime” she is a victim of every night. As of 2019, 150 countries out of 195 countries in the world have criminalized marital rape. It is a matter of disgrace, that India is one of the rare countries where it is normal for a man to rape his wife and women are deprived of the basic right to dignity, with a legal backing. Laws meant for the protection and welfare of women in nexus with marriage such as the Dowry Prohibition Act, 1961, the Protection of Women from Domestic Violence Act, 2005 have not only failed to fulfil their aim to a considerable extent, but in the contemporary social setting, instead of being a shield to the vulnerable, it has become a weapon in the arms of the fiends.
In a recent judgement in the case of Pradeep Tomar v. State of U.P. (2021), the Allahabad High Court observed that there is an inconsistency between the provisions of IPC and the Protection of Children from Sexual Offences (POCSO) Act, 2012. While rape of a married girl aged between 15 and 18 years is not rape and thus not deemed an offence under Exception 2 to Section 375 of the IPC, it is an offence of aggravated penetrative sexual assault under Section 5(n) of the POCSO Act and is punishable under Section 6 of POCSO Act. To resolve the inconsistency and align Exception 2 to Section 375 with the POCSO Act and with a view to interpret it in a purposive manner, the Court raised the age bar given in Exception 2 to Section 375 from 15 to 18. Exception 2 to Section 375 of IPC will be hereon read as "Sexual intercourse or sexual actions by a man with his own wife, the wife not being under the age of eighteen, is not rape." Albeit this is a cause to celebrate as it would fulfil the objectives of the POCSO Act to a greater extent by protecting children who have been victims of child marriage from sexual offences at the hands of their spouses, married women are still yearn for protection and security from their own spouses and they are deprived of their right to live healthy and dignified life.
How can married women feel safe when their perpetrators are their own husbands; more importantly, if women don’t feel safe in their own homes, can they ever feel safe elsewhere? Besides the fact that Exception 2 to Section 375 of the IPC is a blatant infringement of fundamental rights, it contradicts the constitutional ideologies embodied in the Preamble and the morals, the Indian society claims to uphold. Despite the judiciary having asserted the view that women have the right to abstain from sexual intercourse, India is devoid of a legislation that criminalizes marital rape. It is high time that the Indian jurisprudence acknowledge the need for a legislation deeming marital rape a criminal offence thereby upholding the values of human dignity, liberty, equality, integrity that the Indian legal system aims to bestow upon its citizens.
“Women quickly learn that rape is only a crime in theory; in practice the standard for what constitutes rape is not set at the level of experience of women's violation but just above the level of coercion acceptable to men.” –Judith Lewis Herman.
Prarthana Mitra, Qrius, Married partners can say “no” to physical relations, observes Delhi High Court, (July 19, 2018), https://qrius.com/married-partners-can-say-no-to-physical-relations-observes-delhi-high-court/.
Raj Aryan, ILSJCCL, Marital Rape-Comparison of India with Foreign Countries: Raj Aryan, (April 14, 2020), https://journal.indianlegalsolution.com/2020/04/14/marital-rape-comparison-of-india-with-foreign-countries-raj-aryan/).
Urvashi Prasad, The Indian Express, National Family Health Survey underscores need for serious discussion on marital rape, (March 15, 2018), https://indianexpress.com/article/gender/national-family-health-survey-underscores-need-for-serious-discussion-on-marital-rape/.
RIT Foundation v. Union of India, Marital Rape Is Rape – An RIT Foundation Initiative, (2017), https://www.maritalrapeisrape.com/home/#what-is-marital-rape.
RIT Foundation v. Union of India, Writ Petition (Civil) No. 284/2015.
Pradeep Tomar and Another v. State of U.P. And Another, Criminal Misc Anticipatory Bail Application U/S 438 CrPC No. - 228 Of 2021.
Suchita Srivastava & Another v Chandigarh Administration, AIR 2010 SC 235.
Govind v. State of Madhya Pradesh & Another, 1975 AIR 1378, 1975 SCR (3) 946.
Kharak Singh v. The State of U. P. & Others, 1963 AIR 1295, 1964 SCR (1) 332.
Judith Lewis Herman, Trauma and Recovery: The Aftermath of Violence--From Domestic Abuse to Political Terror, (Basic Books 1997).
First Year, BA LL. B,
Xavier Law School,
Legal Intern, S. Bhambri & Associates. (Batch 2)